United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Outley sued his employer, the City of Chicago, and three
officials of the City's Department of Water Management
(“DWM”)-Commissioner Randy Conner, Deputy
Commissioner Alan Stark, and Chief Operating Engineer Robert
Mussen-alleging violations of Titles VI and VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000d-2000e et
seq., the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.,
his union's Collective Bargaining Agreement, the
Shakman Accord, and 42 U.S.C. §§ 1981 and
1983. Doc. 55. Defendants move under Civil Rule 12(b)(6) to
dismiss most, but not all, of Outley's claims. Doc. 91.
The motion is granted in part and denied in part.
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, though not its legal conclusions. See Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “documents
attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is
subject to proper judicial notice, ” along with
additional facts set forth in Outley's brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th
Cir. 2013) (internal quotation marks omitted). The facts are
set forth as favorably to Outley as those materials allow.
See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th
Cir. 2016). In setting forth the facts at the pleading stage,
the court does not vouch for their accuracy. See Goldberg
v. United States, 881 F.3d 529, 531 (7th Cir. 2018).
Alleged Failure to Promote to COE
operates eleven pumping stations, some unmanned and others
manned. Doc. 55 at ¶ 20. DWM designates a Chief
Operating Engineer (“COE”) to oversee each manned
pumping station, while one COE located at the Chicago Avenue
Pumping Station supervises all unmanned stations.
Id. at ¶¶ 23, 26. Harvey
“Skip” Hunker occupied the latter position at all
relevant times. Id. at ¶ 27. From 1989 to 2015,
all men promoted to COE were white, even though many
African-Americans working as Assistant Chief Operating
Engineers (“ACOE”) took the test to become COE
and/or applied for the position. Id. at ¶ 28.
1985, the City contracted with DuPage County to build the
Lexington Pumping Station and agreed that it would be a
manned station. Id. at ¶¶ 21-22. Outley,
an African-American man who is now sixty-three or sixty-four
years old, began working at Lexington in 1993. Doc. 55 at
¶¶ 8, 18. He started as an operating engineer but
soon became an ACOE. Id. at ¶¶ 18-19. At
all relevant times, Outley was a member of the International
Union of Operating Engineers, Local 399, and was covered by
the Local's Collective Bargaining Agreement
(“CBA”). Id. at ¶¶ 42-43.
2010, the COE position at Lexington became open. Id.
at ¶ 29. Outley had the most seniority of all ACOEs, and
he and other African-American employees had sufficient
seniority, experience, and other credentials to qualify for
the open position. Id. at ¶¶ 30, 32. But
DWM deliberately left the position open until it handpicked a
white candidate to fill it. Id. at ¶ 33.
Although DWM budgeted for a COE at Lexington, it did not post
a bid announcement for the position until 2014 and did not
fill it until 2015. Id. at ¶¶ 29, 32, 34.
DWM interviews for an open COE position, it permits only
those candidates deemed qualified by the City's
Department of Human Resources (“DHR”) to advance
in the hiring process. Id. at ¶ 41.
“Qualified” candidates take a three-part test.
Ibid. The City exercised exclusive control of the
test through DHR and certain other employees, particularly
DWM Deputy Commissioner Alan Stark, which subjected the test
to the risk of manipulation. Id. at ¶¶
35-37. One part of the test was a subjective, in-person panel
interview that allowed the interviewers to “elicit
certain predetermined catch phrase answers rather than a
correct answer to the technical question.” Id.
at ¶¶ 38, 40. From 2014 to 2017, the interview
panel for open COE positions at Lexington and elsewhere
included: (1) Outley's former coworkers who had been
promoted over him; (2) persons who were the source of
discriminatory communications towards Outley; (3) persons who
were named defendants in Outley's then-pending
discrimination suit, including Stark; (4) other upper level
management; and (5) “other people who may or may not
have technical knowledge of the skills necessary for the
position of COE.” Id. at ¶ 39. Outley
applied for a promotion to COE each year from 2014 to 2017.
Id. at ¶ 46. In 2015, DHR denied him the
opportunity to sit for the COE examination. Id. at
¶ 50. In 2014, 2016, and 2017, Outley was deemed
qualified by DHR, passed each component of the application
process, and satisfied all requirements for the promotion,
but was not promoted. Id. at ¶¶ 46-47.
Instead, DWM manipulated the process to ensure that its
pre-selected candidates were promoted, denying Outley the
promotion on the basis of his race and/or his age in
accordance with the City's “deliberate and
pervasive pattern and practice of systemic and continuing
employment discrimination against Black employees.”
Id. at ¶¶ 45, 48-49, 160.
the City promoted several white employees, including Mark
Henmuellen and Joseph Lynch, to COE in 2014. Id. at
¶ 53. In 2015, the City promoted Robert Mussen to the
COE position at Lexington. ¶ 54. Mussen, a white man,
had test scores that were substantially the same as
Outley's, but had less seniority. Id. at
¶¶ 54, 91. The City also promoted Andre Holland and
Kathleen Ealey to COE in 2015 and 2017, respectively.
Id. at ¶¶ 55, 58. Both were “much
younger” and less senior, experienced, and educated
than Outley. Id. at ¶¶ 55, 58, 201. Stark
and DWM Commissioner Randy Conner exercised ultimate policy
making authority over the promotions. Id. at
¶¶ 122, 126.
Alleged Denial of Overtime and “Working Up in
Grade” Opportunities and Related Retaliation
employees are given overtime opportunities based on
seniority. Id. at ¶ 84. Although Mussen had
less seniority in both time and grade than Outley, he made
over $100, 000 in overtime pay while Outley was denied
overtime. Id. at ¶¶ 85-88. After Outley
complained to DHR, DHR denied him the opportunity to work up
in grade, including when Hunker (the COE responsible for
overseeing all unmanned stations) was absent due to illness.
Id. at ¶ 89. DHR allowed Mussen to work up in
grade. Id. at ¶ 91. A Commissioner or Deputy
Commissioner must approve opportunities to work overtime or
up in grade. Id. at ¶ 96. As COE, Mussen had
“ultimate policy making authority over overtime and
working up in grade opportunities at Lexington.”
Id. at ¶ 97. To support his Monell
claim against the City based on this conduct, Outley alleges
that “the City has a deliberate and pervasive pattern
and practice of systemic and continuing employment
discrimination against Black employees, including [Outley]
with respect to opportunities for overtime and working up in
grade, ” and that the City “deliberately
overlooked the seniority of Plaintiff by failing to offer
overtime to him at the same rate and under the same
conditions that the City provides overtime opportunities to
non-Black employees, ” thereby violating its Personnel
Rules and Regulations. Id. at ¶¶ 83, 90,
Alleged Hostile Work Environment and Related
at DWM, Outley was: (1) assigned less desirable shifts, days
off, and work assignments; (2) denied promotions, transfers,
overtime, opportunities to work up in grade, training
opportunities, and fair compensation; (3) bullied and
intimidated; (4) harassed based on race; (5) subjected to
“unwelcomed racially-charged conduct, ” workplace
violence, and harsh and undue discipline; and (6)
constructively discharged. Id. at ¶ 61. Among
other incidents, Outley was “humiliated, harassed, and
threatened daily by co-workers, supervisors, and DWM
leadership, including … Mussen and Stark.”
Id. at ¶ 69. The City, Mussen, Stark, and
Conner were aware of “racially insensitive emails,
screen savers, posters, cartoons, intimidating items, and
graffiti, in various locations within the City's DWM
pumping stations, ” which Outley found painful.
Id. at ¶ 63. Many African-American DWM
employees faced “racial slurs; conduct of a racial
nature; racially motivated jokes; racially insensitive
communications [like] e-mail, screen savers, posters,
cartoons, intimidating items, and graffiti; and unwanted
verbal and physical contact based on race.”
Id. at ¶ 64.
questioned his treatment and complained to the City, but in
response he was “physically intimidated, threatened,
verbally abused, mocked and/or ignored, ” and DWM
instituted a “policy of retaliation, ” denying
him “promotional, overtime and/or training
opportunities.” Id. at ¶¶ 62, 72-74.
After Outley was cleared of wrongdoing for a 2013 incident,
DHR told him in 2017 that the investigation remained open and
held an investigative hearing. Id. at ¶ 66.
Despite lacking credibility, several charges against Outley
remained open until after he left DWM in July 2017.
support his Monell claim against the City based on
this conduct, Outley alleges that “the City through its
DHR and/or its personnel office, maintains written or
unwritten policies and/or practices that create, sustain, and
proliferate a hostile and abusive work environment for
Plaintiff, based on race, and especially within the Lexington
Pumping Station”; that those acts were
“perpetuated, sustained, and created by deliberate acts
allowed, sanctioned, and encouraged by [the] City's
DHR”; that there were “written or unwritten
policies and/or practices for excessive and unwarranted
discipline” for African Americans; that the City
“applies workplace rules and regulations in a
racially-biased manner”; and that the City maintains
“written and unwritten policies and practices regarding
evaluation, compensation, and advancement in leadership and
promotion” that “subjected [him] to ongoing
disparate treatment based on race.” Id. at
¶¶ 59-60, 70, 79. Outley further alleges that the
treatment he and his African-American coworkers was “so
pervasive that it has become the City['s] standard
operating procedure” and a “department-wide
pattern and practice.” Id. at ¶¶ 76,
Alleged Constructive Termination
30, 2017, Mussen followed Outley into the parking lot at
Lexington, yanked open the door of Outley's car in an
aggressive and threatening manner, and entered the car while
mumbling things that Outley could not hear. Id. at
¶¶ 99-100. Outley was afraid that Mussen would
physically attack him or damage his car. Id. at
¶ 100. He also thought that Mussen was trying to bait
him into an altercation to drum up disciplinary charges or
provide a pretext for calling the police, as DWM personnel
had unjustifiably done on a previous occasion. Id.
at ¶¶ 101-102. Outley reported the incident as an
act of workplace violence and asked DHR to preserve security
camera footage. Id. at ¶ 106. On a previous
occasion, when Plaintiff had been accused of committing
violence in the workplace, the City retrieved surveillance
footage. Id. at ¶ 109. But the City ignored
Outley's request and made no attempt to preserve the
footage, even though three Lexington employees witnessed the
incident. Id. at ¶¶ 105, 107. Customarily,
DHR removes alleged aggressors from the workplace after an
employee lodges a workplace violence charge. Id. at
¶ 110. But DHR took no action against Mussen and
dismissed Outley's complaint with a finding that the
“activities did not rise to the level of violence in
the workplace.” Id. at ¶¶ 108, 111.
the incident with Mussen, Outley felt unsafe because he
realized he could not seek redress for workplace violence.
Id. at ¶ 116. That incident, together with the
discriminatory acts described above, made working at DWM
intolerable to a reasonable person. Id. at ¶
115, 119-121, 123. Outley resigned on July 31, 2017.
Id. at ¶ 121.
present suit is Outley's second arising from his
employment at DWM. In the first, Outley v. City of
Chicago, No. 13 C 1583 (filed Feb. 28, 2013) (Lefkow,
J.) (“Outley I”), Outley sued the City
and various City employees in their individual and official
capacities, including Paul Mazur, Outley's COE and
immediate supervisor at the time; DWM Deputy Commissioner
Stark; and then-DWM Commissioner Thomas Powers. Outley
I, Doc. 118 (Aug. 24, 2016). He alleged race
discrimination and retaliation under Title VI, Title VII, and
§§ 1981 and 1983. In January 2019, Judge Lefkow
granted summary judgment against Outley. Outley I,
354 F.Supp.3d 847 (N.D. Ill. 2019). Final judgment was
entered. Outley I, Doc. 205 (Jan. 11, 2019). On
Outley's motion, Judge Lefkow then amended the judgment
to exclude from its ...